Speaker Presentation
Preservation and Access for Electronic College and University Records
October 12 – 13, 2001

Legal Requirements for Electronic Records

ECURE 2001
Mesa, Arizona
October 12, 2001

Donald S. Skupsky, JD, CRM, FAI, MIT
Information Requirements Clearinghouse
Denver, Colorado
dskupsky@irch.com
www.irch.com

1

Uniform Laws

• Uniform Rules of Evidence *
• Uniform Photographic Copies of Business and Public Records as Evidence Act
• Uniform Preservation of Private Business Records Act
• Uniform Electronic Transactions Act (UETA)*

* Adopted by Arizona

2

Evidence — Historical Perspective

• Records Historically NOT Admitted in Evidence
• Live testimony preferred
• Records are “Hearsay”

3

Hearsay

A statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

- Uniform Rules of Evidence, Rule 801.

4

Uniform Rules of Evidence
Definition: “Records” - Rule 1001(a)

• Records: … letters, words, sounds or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, chemical or electronic recording, or other form of data compilation.
• Data compilation = computer record

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Uniform Rules of Evidence
Hearsay Exception - Rule 803(6)

• Records in any form admissible in evidence, if
  • Records of act or event
  • Made at or near time of event
  • By or from person with knowledge
  • Kept in the course of regularly conducted business activity

6

Uniform Rules of Evidence
Hearsay Exception - Rule 803(6)

• Regular practice of business activity to make these records
• Testimony provided showing compliance by custodian or other qualified person
• Unless source of information or method or circumstances of preparation lack trustworthiness

7

Uniform Rules of Evidence
Authentication and Identification -
Rule 901

• “Foundation” required before all records (and evidence) admitted into evidence
• Evidence sufficient to support a finding that the matter in question is what its proponents claim

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Uniform Rules of Evidence
Authentication and Identification -
Rule 901

• Example: Rule 901(b)(9)
  • Evidence describing a process or system used to produce the result, and
  • Showing that the process or system produced an accurate result

9

System Components for
Compliance with Rule 901

• Components
  • Procedures
  • Training
  • Audit
• Documentation

10

Authentication and Identification
Certificate of Authenticity

• Not required for evidence
• Often required by law for government records

11

Uniform Rules of Evidence
Original - Rule 1001(c)

• Writing and recording itself
• Counterpart intended to have the same effect as the original
• Computer printout or other output
  • Readable by sight
  • Shown to reflect the data accurately

12

Uniform Rules of Evidence
Duplicate - Rule 1001(d)

• Counterpart produced from
  • Same impression as the original,
  • Same matrix as the original,

13

Uniform Rules of Evidence
Duplicate - Rule 1001(d)

• By means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or
• By other equivalent techniques which accurately reproduces the original.

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Uniform Rules of Evidence
Other Evidence of Contents -
Rule 1004

• Originals not required
  • Originals lost or destroyed, without bad faith
  • Originals not obtainable
  • Originals in the possession of another
  • Records collateral to controlling issues

15

Uniform Rules of Evidence
Admissibility of Duplicates -
Rule 1003

• Duplicates admissible to the same extent as originals, unless
  • Genuine question raised as to the authenticity or the continuing effectiveness of the originals, or
  • It would be unfair to admit the duplicates in place of the originals

16

Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)

• Reproductions made in regular course of business
• Reproductions by “any technique that accurately reproduces the originals”
• Originals can be destroyed after reproduction
• Reproductions admissible in evidence/administrative proceedings

17

Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)

• Explicit permission to destroy after reproduction
• Rule of “conduct” for federal transactions, including education
• Still in about 30 states and US Federal Government

18

Court Decisions -
Computer Records

“Computer data compilation may constitute business records for purposes of Rule 803(6) and may be admitted at trial if a proper foundation is established.”

- United States v. Croft, 750 F.2d 1353.

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Court Decisions -
Computer Records

• “Computer business records are admissible if
  • kept pursuant to a routine procedure designed to assure their accuracy,
  • created for motives that tend to assure accuracy,
  • not themselves mere accumulation of hearsay.”
    - United States v. Sanders, 749 F.2d 195.

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Court Decisions -
Electronic Imaging

• No reported court decisions — from appeals
• No reported problems from users admitting paper prints from electronic imaging systems into evidence

21

Arizona Government Requirements: ARS 41-1348

• Applied to “production” or “reproduction” of public records
• Permits microfilm and electronic media
• Permission from Department of Library, Archives and Public Records
• Records admissible in evidence

22

Uniform Electronic Transactions Act (UETA: 1999) — (adopted by AZ)

• Adopted as Uniform Law by over 11 states
• Similar to “E-Sign” — Electronic records law adopted by U.S. Federal Government.

23

UETA: Applicability

• Does not require electronic record or signature
• Applies to parties who “agree to conduct transactions by electronic means
  • Prior agreement
  • Previous conduct — e.g., exchange of e-mail forming contracts

24

UETA: Conclusions

• Just because Record, signature or contract is electronic
  • Cannot be denied legal effect
  • Cannot be excluded from evidence
• If law requires Record/Signature, electronic record meets requirements

25

UETA: Time/Location of Transaction

• Record sent: When transmitted out of control of sender
• Record received:
  • When sent to receivers correct address, and
  • When received by receiver’s electronic records system.
• Receiver does not have to read

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UETA: Special Issues

• Receiver does not have to read for record to be received
• Electronic record not enforceable against recipient if sender inhibits the recipients ability to file and print

27

UETA: Signature Validation

• Electronic signature is attributable to a person if it is an “act” of that person
• Look to circumstances regarding creation, execution, security, etc.

28

UETA: Retention

• Retain electronic record for required period
• Maintenance of electronic record for required period meets requirements to retain record
• Note: “Retention of record” does NOT include information whose sole purpose is to enable record to be sent, communicated or received.

29

Problem With E-mail

• Replacement for telephone or face-to-face conversation
• Authors believe their E-mail is private
• Authors don't believe they are making “records”
  • E-mail is a “tool” to communicate
  • Authors don't go through a formal process to create E-mail

30

Problem With E-mail

• E-mail language not to the same standard as formal letter or memo
  • Loose language
  • Incomplete thoughts
• Authors/recipients “selectively” destroy E-mail records
• E-mail subject to litigation as an “admission”
• Restrictions of E-mail reduce efficiency

31

A New Definition

• Record. The result of recording or preserving information on any media with the intent to preserve information that reflects the position or official business of an organization.
• Record = Official Record

32

Skupsky Recommendations for E-Mail

• E-Mail should be defined as “non-record material”
• E-Mail should self-destruct in 30 days
• Procedures to convert selected E-Mail to “records”
  • Assign record series code plus retention period and store in electronic filing system, or
  • Print and store in paper file

33

Electronic Records - Backup Strategy

• Problem: Cannot destroy records with different retention periods from backup tapes
• Distinguish “backups” from Off-Line storage
  • Backup: Disaster recovery / vital records
  • Off-Line Storage: Long-term, low access information

34

Electronic Records - Retention Strategy

• Off-Line Storage
  • Treat separate from back-up
  • Segregate records with different retention periods
• Backups
  • Segregate backup for records with very short-term retention — e-mail
  • Recycle tape after short period

35

Migration Strategy for Long Term Retention

• Media migration
• Software / Format migration
• Technology migration
  • Active: electronic
  • Inactive: microfilm

36

Distribution / Storage Methodology

• Goal: “Central Files”
  • Records in one location
  • Central control and management
  • Trained people implement company policy
• Permit distributed creation and use

37

Distribution / Storage Methodology

• Examples:
  • E-mail
    • Current: Download to workstation
    • Better: Maintain on server
  • Distribution
    • Current: Send files to everyone
    • Better: Send links to everyone and store files in one place

38

Retention of Original Records After Imaging

• Original records required by law
• Records with intrinsic value: stock certificates, bonds, cash, negotiable instruments
• Documents for which the original signature or handwriting may be significant — e.g., wills
• Notes, mortgages, and debt instruments that will be stamped “paid” and returned to owner

39

Absence of Legal Guidance - “The Void”

• Skupsky’s Basic Principle of American Law
  • You may do anything you want, unless the act is
    • Prohibited, or
    • Regulated

40

Absence of Legal Guidance - “The Void”

• You may use any system of records, unless the system is
  • Prohibited, or
  • Regulated

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The End

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